We have written a number of times on CAFA, the Class Action Fairness Act.  The decisions and subjects we have covered can be pretty technical and even numerical. After all, one of the central provisions of CAFA has a number in it: a “mass action” is one “in which monetary relied claims of 100

Plaintiff lawyers must be mighty allergic to federal court.  They perform all sorts of maneuvers to avoid CAFA removal of mass actions.  For example, they will artificially subdivide their cases into groups of under 100.  And/or they will disclaim any intent to try the cases together.  Do these circumventions work?  Perhaps most important, since so

Permitted gamesmanship versus prohibited conduct.  That is the dichotomy that one district judge adopted to describe the transparent forum manipulation that some plaintiffs undertake under CAFA.  To be honest, neither characterization is terribly flattering:  Either plaintiffs are openly gaming the system to avoid federal jurisdiction under CAFA, or they are engaging in conduct that a federal statute downright prohibits.  Either way, the result should be an order for the defense.

Well, neither the world nor the law is perfect, as the Ninth Circuit reminded us last week in an opinion remanding hundreds of claims relating to the same prescription drug.  Briggs v. Merck Sharp & Dohme, No. 15-55873, 2015 WL 4645605 (9th Cir. Aug. 6, 2015).  To back up a little, the issue is “mass action” jurisdiction under CAFA, a topic that we have been tracking for some time (including here, here, and here).  As our readers know, CAFA permits removal of “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  28 U.S.C. § 1332(d)(11)(B)(i).  This has led to the widespread practice of plaintiffs’ attorneys gathering up hundreds of unrelated plaintiffs claiming injuries related to the same product or related products.  But rather than file one complaint for each plaintiff or file one consolidated complaint (either of which would almost always result in undisputable removal jurisdiction), the plaintiffs’ attorneys divide their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  This is their extraordinarily transparent attempt to avoid removal under CAFA “mass action” jurisdiction.

It should not work, and it did not work last year in Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014).  In Corber, the Ninth Circuit held that several mass complaints, taken together, constituted a CAFA mass action.  The Court of Appeals’ reasoning was solid:  The plaintiffs collectively numbered more than 100, and the plaintiffs had proposed that their cases be tried jointly within the meaning of CAFA when they petitioned to coordinate their complaints before one California state judge “for all purposes.”  As we pointed out when we first wrote on Corber, coordination “for all purposes” is the only kind of coordination that California’s rules permit.Continue Reading More CAFA “Mass Action” Gamesmanship In The Ninth Circuit

We will never forget our first removal under the Class Action Fairness Act.  It was circa 2006, shortly after President Bush signed CAFA into law, when we received word of a complaint against our client filed in California state court with more than 100 plaintiffs claiming injuries from the same prescription drug.  Aha!  A removable mass action, we thought.  And before we knew it, we had the case in federal court under CAFA jurisdiction, poised to be transferred into a distant MDL.  After all, the plaintiffs were almost all litigation tourists with no connection whatsoever to the Golden State.

Careful readers have already discerned the end to this story.  Mass actions removed under CAFA may not be transferred to an MDL under the MDL statute (28 U.S.C. § 1407) unless a majority of the plaintiffs request the transfer.  See 28 U.S.C. § 1332(d)(11)(C)(i).  No such a request was forthcoming in our case.  In the words of our favorite post-modern philosopher, Homer J. Simpson, “D’oh!”  We and our more-than-100 adversaries remained in California, a beautiful place to be for many reasons, but not the proper forum for these non-California plaintiffs and their lawyers.

Since those early days, we have come across two ways to transfer a CAFA mass action to an MDL, notwithstanding CAFA’s prohibition on section 1407 transfers.  The first is to state an alternate basis for removal jurisdiction, such as federal question jurisdiction or diversity jurisdiction based on fraudulent joinder or misjoinder.  The JPML has permitted transfer of CAFA mass actions to multidistrict litigation, so long as CAFA is not the only basis for removal jurisdiction.  The most-cited example comes from the Darvocet MDL.  See In re Darvocet, Darvon and Propoxyphene Prods. Liab. Litig., 939 F. Supp. 2d 1376 (J.P.M.L 2013) (“Section 1332(d)(11)(C)(i) does not prohibit Section 1407 transfer of an action removed pursuant to CAFA’s mass action provision so long as another ground for removal is asserted.”).

The second method is to seek transfer not under section 1407, but instead under 28 U.S.C § 1404, the general venue transfer statute.  This strategy also comes out of the Darvocet litigation, Romo v. McKesson Corp., No. ED 12-2036, 2015 WL 3622620 (C.D. Cal. June 9, 2015), and all we can say is that we wish we had thought of it ourselves.  We have written before
on Romo in connection with the Ninth Circuit’s opinion holding that hundreds of claims related to one prescription drug constituted a CAFA mass action, even though counsel tried strategically to evade federal jurisdiction by dividing the plaintiffs into multiple civil actions of slightly under 100 plaintiffs each.
Continue Reading How to Transfer a CAFA Mass Action to an MDL

This morning the United States Supreme Court decided Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, slip op. (U.S. Dec. 15, 2014), holding that removal under the Class Action Fairness Act (“CAFA”) requires no evidentiary submission regarding the amount in controversy beyond that alleged in the notice of removal.  The statute “tracks” Fed.

We read with great interest the Ninth Circuit’s recent opinion on CAFA “mass action” jurisdiction, Corber v. Xanodyne Pharmaceuticals, Inc., No. 13-56306, 2014 WL 6436154 (9th Cir. Nov. 18, 2014).  If you have not read it yet, you should.  We hesitate to call it a blockbuster, since we think the opinion’s reasoning is more narrow that it needed to be (more on that later).  But the result (holding that CAFA removal was proper) is clearly correct, and the opinion hopefully will become a stalwart against one of the more brazen abuses that we see in pharmaceutical litigation – the disingenuous joining of hundreds of unrelated plaintiffs in multiple complaints in a single jurisdiction, but with each complaint numbering fewer than 100 plaintiffs in order to avoid CAFA removal.

It is a form of “litigation tourism”—the mass importation of plaintiffs into jurisdictions that have no interest whatsoever in adjudicating their claims—and we have always wondered why courts tolerate it.  It has become a particular problem in California, whose underfunded courts are clogged as it is and whose taxpayers should not have to subsidize transient plaintiffs and the attorneys who represent them.

You won’t find this context in Corber, but trust us, it’s simmering there just beneath the surface.  Corber was one of multiple complaints filed in California state court alleging injuries in connection with the prescription drug propoxyphene.  The complaints together asserted the claims of hundreds of unrelated plaintiffs from all parts.  But rather than file one complaint for each plaintiff (which would have subjected the vast majority to removal under standard diversity jurisdiction) or file one consolidated complaint (which clearly would have been removable as a mass action under CAFA), the plaintiffs’ attorneys divided their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  To review, CAFA permits removal of “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  28 U.S.C. § 1332(d)(11)(B)(i).  So 100 is the somewhat-magic number that plaintiffs are careful to stay beneath, which these plaintiffs’ lawyers scrupulously did.Continue Reading The Ninth Circuit’s Must-Read Opinion on CAFA Jurisdiction